Nancy J. Wallace,

Attorney at Law

Nancy J. Wallace, Attorney at Law
320 N. E Street
Andreson Building, Suite 206
San Bernardino, CA 92401
ph: 909-381-2771
fax: 909-381-2791
nancywallace@imhurt.info

Helpful Reading

Typically, there are three basic eligibility requirements for workers' compensation benefits:

The person or company you were working for must carry workers' compensation insurance or be legally required to do so.
You must be an employee of that person or company.
Your injury or illness must be work-related.

In addition, there are some special rules for domestic workers, agricultural and farm workers, leased or loaned workers, casual or seasonal workers, and undocumented workers (these are discussed in the "Special Rules for Certain Workers" section below).

Let's take a closer look at all three of the basic eligibility requirements.

Requirement One: Employer Must Be Covered By Workers' Compensation

Not all employers are required to have workers' compensation coverage. State laws vary, but an employer's responsibility to provide coverage usually depends on how many employees it has, what type of business it is, and what type of work the employees are doing. For example, a few states require only employers with at least three employees to be covered, but most states don't set a minimum. (In these states, an employer that has just one employee must provide coverage.) In addition, some states allow charities to opt out of the workers' compensation system; other states do not. Generally speaking, the vast majority of employers are required to carry coverage; if your employer claims not to be covered by your state workers' compensation statute, you may want to double-check with an attorney.

Typically, employers may provide coverage either by purchasing insurance (on the private market or, in some states, from a state fund) or by self-insuring

Many employers purchase workers' compensation insurance even if they aren't required to do so. State laws typically allow these exempt employers to "opt in" to the workers' comp system. This allows the employer to ensure that its employees are compensated for workplace injuries -- and that they can't file a lawsuit against the employer.

The federal government has its own workers' compensation system. If you are a federal employee, you must look to that system rather than your state system for benefits. You can find out more about federal workers' compensation at the website of the Department of Labor's Office of Workers' Compensation Programs, www.dol.gov/owcp.

Requirement Two: You Must Be An Employee

Not all workers are employees when it comes to workers' compensation eligibility. For instance, independent contractors are not employees and are not entitled to workers' compensation benefits. Examples of independent contractors might include freelance writers or computer consultants. Many employers misclassify workers as independent contractors when they are really employees, however. If you have been denied benefits because the employer claims you are an independent contractor, you should consider consulting with an attorney. To locate a workers' compensation attorney in your area, visit Nolo's Lawyer Directory.

Usually, volunteers are not employees, and so they are not entitled to workers' compensation benefits. There are some exceptions to this rule, however. Some states specifically cover volunteer fire fighters, for example. Also, some states give organizations the option of covering their volunteers.

Requirement Three: Injury or Illness Must Be Work-Related

If your injury or illness is work-related, then it is most likely covered by workers' compensation. Generally speaking, if you were doing something for the benefit of your employer and were injured or became ill as a result, then it's work-related. For example, if you hurt your back while loading boxes as part of your warehouse job, develop carpal tunnel syndrome as a result of typing on the job, or become ill due to exposure to hazardous chemicals at the work site, your injuries are clearly work-related.

Sometimes, however, this issue is harder to figure out. Let's say you were injured on your lunch break, but while picking up a sandwich for your boss. Or maybe you were injured while commuting to work in the company car, walking to an off-site social event with coworkers, or playing softball at the company picnic. In situations like these -- where the injury didn't happen at work but has some connection to the job -- it isn't always easy to determine whether you are covered. See Nolo's article Workers' Compensation: Is Your Injury or Illness Work-Related? for more information.

Special Rules for Certain Workers

Even if you meet all three of the general eligibility requirements described above, you may not qualify for workers' compensation benefits if you fall into one of the special groups of workers who are exempt from coverage under the workers' compensation laws of some states. The most common exempt categories are covered below. If your employer claims that you fall into one of them and are therefore not entitled to benefits, you may want to speak to an attorney to make sure.

Domestic workers. A domestic worker is someone who works in a home -- such as a housekeeper or a babysitter. Some states don't require employers to cover these types of workers.

Agricultural and farm workers. The majority of states exempt agricultural and farm workers from workers' compensation coverage. Not every person who works on a farm falls into this category, however. For example, a horse trainer is not considered a farm worker when it comes to eligibility for workers' compensation benefits.

Leased or loaned workers. If you were loaned to an employer through an agency (for example, a temp agency), states differ on which company -- the one you did the work for or the agency -- has to provide workers' compensation coverage for you.

Casual or seasonal workers. You are a casual or seasonal worker if you work only at certain times of the year or work only intermittently or sporadically. Some states do not require that casual or seasonal workers be covered by workers' compensation.

Undocumented workers. Some states -- including Arizona, California, Florida, Montana, Nevada, New York, Texas, and Utah -- expressly cover undocumented workers in their workers' compensation statutes.

QUESTION: I injured my back 5 years ago. Workers Comp is trying to negotiate a settlement. The settlement is for a lump-sum payment to me and a Medicare set aside. I have received a favorable decision for Social Security disability. How will my lump-sum settlement affect my future Social Security disability payments? How does the Medicare set aside affect my medical expenses?

answer: "How will my lump-sum settlement affect my future Social Security disability payments?"

When Social Security learns you've got income from another source, your monthly payments are either reduced or cut entirely for a few months while you use up the lump sum of the Workers' Comp award.

EXAMPLE:   if SSA normally sends you $800/month, then the Comp Insurer sends $8000, then Social Security won't pay you for 10 months (10 X 800 = $8000).

"How does the Medicare set-aside affect my medical expenses?"   It doesn't affect your expenses, in that the doctors still charge the same amount and you still pay the same co-payments and bill Medicare for the balance.

The 'weirdness' comes in the lump-sum you hold 'In Trust' for the Government:   Medicare looks over the reports then estimates Medicare will pay for care over your lifetime to keep your back functioning.

Let's guess in your case, Medicare estimates it will pay $15,000 on your for that industrial back condition.

That results in the Comp Insurer handing YOU $15,000 to hold for Medicare!

If Medicare never requests that $15,000, it goes to your family when you die.   If Medicare demands the payment and you don't have it (you spent it), Medicare can refuse to pay any further benefits until you give Medicare that set-aside money.

Remember:   you to NOT have to accept this offer.   You can just insist on payment of the Permanent Disability and insist the Comp Carrier pay the medical expense on your back, and use Medicare for everything other than your back, and skip this Set-Aside situation.

But, if you know you're going to put off injections and surgery a long time, it's best to get that 'divorce' from the Comp Insurer, DIG IN and INSIST on at least $10,000 over the Medicare Set Aside amount, and then put the Medicare Set-Aside amount in a separate account and NEVER EVER touch it (until the feds demand payment).

For now, YOU get the keep the interest from the Medicare Set-Aside deposit.

I have clients who have had their Set-Aside money in an account for four years and Medicare still doesn't want it.    I had one client die with his set-aside money untouched, Medicare indicated his estate owed nothing, and the money went to his daughter.

Subject:

Closed my case

QUESTION: Hi: On 1/23/09, I was run over by a forklift at work and dragged 10-15 feet. My legs went under the forklift up to my knees. I reported the incident to my employer, who labeled the injury as "injury to right foot." After 2 months, I finally got the worker's comp report amended to label the injury as both feet and knees so that I could get proper medical attention. At my initial doctor's visit, I was told that nothing was broken. After 3 months of pushing for an MRI, it was discovered that I had a fracture in my right foot; they refused to MRI anything else.

To date, I still feel like I'm stepping on something on my right foot, I have numbness, burning, aching. My left foot still has burning. My knees crack and lock up. My job requires me to be on my feet, and I sometimes find it hard to stand up. Immediately upon the injury, I had to take 3 days' vacation to have any time off to recouperate as my employer would not grant me any time off.

I just found out that on 1/15/10, my employer closed my case without my knowledge and with a medical report that says my disability status is permanent and stationary. I don't even know what that means.

My friends and relatives are strongly suggesting that I contact a personal injury attorney, but I am so hesitant to do so, both because of concerns over finding a personal injury attorney that I can trust and because of loyalty to this long-time employer. I'm not even sure what to ask you, but can my employer close my worker's comp case without my knowledge or consent? Is there a time limit for me to pursue additional assistance by hiring a personal injury attorney? How can I find a reputable personal injury attorney?

Answer: Lisa,

You need a Certified Specialist in WORKERS COMPENSATION.

A Personal Injury Attorney might pursue an action against the Forklift Manufacturer because the driver couldn't see effectively to avoid striking/dragging you.

But any claim against the employer and the employer's Forklift Operator is the 'exclusive jurisdiction' of the Workers' Compensation Appeals Board (IF you are in California).

You need to get your own medical evidence in a very specific procedure, evidence that will EFFECTIVELY dispute and challenge the employer's doctor findings that you are Permanent & STationary with no residual permanent disability.

"permanent & stationary" means that all the new treatment in the world will not improve your condition.

(You might get some relief temporarily with short-term care, but that care will not improve your overall level of disability... given that clinic doc says you have no disability, no treatment can make you better than 100% cured.)

Whatever clinic saw you found you fully recovered with no need for future medical care. YOu need a technical medical report that explains in detail how that report is very wrong.

You CANNOT get that from the family doctor on the corner (so don't run to the local chiro).

You MUST get a Qualified Medical Evaluation, that "QME" you've likely heard about.

There is a form you need to print out, complete thoroughly and mail off to Oakland.

YOu can find the form at (hope this link works!!): http://www.dir.ca.gov/dwc/FORMS/QMEForms/QMEForm105.pdf

The "Specialty Requested" on the Second line of that form is MOS ... that's Comp 'code' for Orthopedic Surgery.

In a few days of mailing the completed form to Oakland (address is on the form), mabye two weeks, you will get a list of three doctors.

DO NOT PICK YOUR OWN DOCTOR from that list.

You could pick a doctor that is 'friends' with the Comp Insurance company and write another report that you are fully recovered with no disability and no need for treatment. Then everything is over.

So you need an expert to pick the right doc from the list for you (you pick blindly and cross you fingers, and you have a 67% chance of losing everything).

Call a CERTIFIED SPECIALIST in Workers Comp and ask which of the three on your list they would pick; if you get to your point in 10 seconds without reciting your history for 20 minutes, just tell them the three docs and ask which they would choose, they should help for free. I do it every day.

Then you schedule the appointment directly with that recommended doctor. The insurer mails him all your file materials and THE INSURER PAYS FOR IT.

Don't put this off any longer, you are already 18 months post injury, the doctors and judges will assume you are not seriously hurt if you were physically able to wait this long before getting a QME. HURRY.

NANCY IS ON LAWGURU.COM:

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